CHAPTER X.

FINDING.

It is a general rule that the finder of lost property has a valid claim against all the world but the owner. The place in which, or the circumstances under which, it is found, generally make no exception to this rule; but sometimes they do. In Massachusetts, it was held that the finder of a pocket-book left by the owner in a shop could not hold it against the keeper of the shop in which it was found. But in England this case occurred: a man found on the floor of a shop a large parcel of bank-notes, and handed them to the shopkeeper for the owner. The finder soon after went abroad, and staid three years. On his return, inquiring of the shopkeeper, he learned that the bills had been advertised by him, and no one had claimed them. The finder then demanded them of the shopkeeper, offering to pay the cost of the advertisement. The shopkeeper refused to give them up, and the finder brought his action, and recovered judgment against the shopkeeper for the whole amount.

A finder of property need not take charge of it; but if he chooses to do so, he becomes what the law calls a depository, and is liable to the owner for any loss of or injury to the property from the finder's gross negligence. We think, although it is not quite certain, that a finder who takes care of property may charge the owner for necessary expense and labor in such care.

A finder who refuses the goods to the true owner, knowing him to be the true owner, is liable to an action for their value; but not if he refuses because he does not know him to be the true owner.

If a specific reward has been offered for lost property, the finder may refuse to give it up without payment of the reward; but it is not so if the offer be general only, as of a liberal reward.

If a person casts away and abandons any property as entirely worthless, the finder thereof may hold it against the original owner.

A finder of property who knows the true owner, and conceals the property, or appropriates it to his own use, is guilty of theft

CHAPTER XI.

CONSIDERATION.

SECTION I.

THE NEED OF A CONSIDERATION.

It is an ancient and well-established rule of the common law prevailing in this country, that no promise can be enforced at law, unless it rests upon a sufficient consideration; by which word is meant a cause or reason for the promise. If it do not, it is called a naked bargain, and the promisor, even if he admits his promise, is under no legal obligation to perform a promise that he made without a consideration.

The word "consideration," as it is used in this rule, has a peculiar and technical meaning. It denotes some substantial cause for the promise. This cause must be one of two things: either a benefit to the promisor, or else an injury or loss to the promisee sustained by him at the instance and request of the promisor. Thus, if A promises B to pay him a thousand dollars in three months, and even promises this in writing, the promise is worthless in law if A makes it as a merely voluntary promise, without a consideration. But if B, or anybody for him, gives A to-day a thousand dollars in goods or money, and this was the ground and cause of the promise, then it is enforceable. And if A got nothing for his promise, but B, at the request of A, gave the same goods or money to C, this would be an equally good consideration, and the promise to pay B would be equally valid in law.

There are two exceptions to this rule. One is when the promise is made by a sealed instrument, or deed (every written instrument which is sealed is a deed). Here the law is said to imply a consideration; the meaning of which is, that it does not require that any consideration should be proved. The seal itself is said to be a consideration, or to import a consideration.

The second exception relates to negotiable paper, and is an instance in which the law-merchant has materially qualified the common law. We shall speak more fully of this exception when we treat of negotiable paper.

SECTION II.

WHAT IS A SUFFICIENT CONSIDERATION.

This requirement of a consideration sometimes operates harshly and unjustly, and permits promisors to break their word under circumstances calling strongly for its fulfilment. Courts have been led by this to say that the consideration is sufficient if it be a substantial one, although it be not an adequate one. This is the unquestionable rule now, and it is sometimes carried very far. In one case, an American court refused to inquire into the adequacy of the consideration, or whether it was equal to the promise made upon it, and said, if there was the smallest spark of consideration it was enough, if the contract was fairly made with a full understanding of all the material facts. Still, there must be some consideration.

The law detests litigation; at least courts say so; and therefore they consider any thing a sufficient consideration which arrests and suspends or terminates litigation. Thus the compromise, or forbearance, or mutual reference to arbitration, or any similar settlement of a suit or of a claim, is a good consideration for a promise founded upon it. And it is no defence to a suit on this promise to show that the claim or suit thus disposed of would probably have been found to have no foundation or substance. If there be an honest claim, which he who advances it believes to be well grounded, and which within a rational possibility may be so, this is enough; the court will not go on and try the validity of the claim or of the suit in order to test the validity of a promise which rests upon its settlement; for the very purpose for which it favors this settlement is the avoidance of all necessity of investigating the claim by litigation. But, for reasons of public policy, no promise can be enforced of which the consideration was the discontinuance of criminal proceedings; or any conduct by which public interests are harmed, as, for example, the procurement of the passage of a law by corrupt means.

If any work or service is rendered to one, or for one, and he requested the same, it is a good consideration for a promise of payment; and if he makes no promise, the law will imply the promise, that is, will suppose that he has made it, and will not permit him to deny it. The rule is the same as to payment for goods, or property of any kind, delivered to any one at his request.

No person can make another his debtor against that other's will, by a voluntary offer of work, or service, or money, or goods.

But if that other accept what is thus offered, and retain the benefit of it, the law will, generally, imply or presume that it was offered at the request of that other party, and will also imply his promise to pay for it, and will enforce the promise; unless it is apparent, or is shown, that it was offered and received as a mere gift.

A promise is a good consideration for a promise; and it is one which frequently occurs in fact.

If A says to B, "If you will deliver goods to C, I will pay for them," although there is no obligation upon B to deliver the goods, if he does deliver them he furnishes a consideration for the agree ment, and may enforce it against A.

An agreement by two or more parties to refer disputes or claims between them to arbitration is not binding upon any of the parties, unless all have entered into it.

The principle that a promise is a good consideration for a promise has been sometimes applied to subscription-papers: all who sign them being held, on the ground that the promise of each is a good consideration for the promises of the rest. The law on the subject of these subscription-papers, and of all voluntary promises of contribution, is substantially this: no such promises are binding unless something is paid for them, or unless some party for whose benefit they are made, and this party may be one or more of the subscribers, at the request, express or implied, of the promisors, and on the faith of the subscriptions, incurs actual expense or loss, or enters into valid contracts with other parties which will occasion expense or loss. As the objection to these promises, or the doubt about them, comes from the want of consideration, it may be cured by a seal to each name, or by one seal which all the parties consider the seal of each.

It is to be regretted that the law does not regard a merely moral consideration as a sufficient legal consideration; but so it is. Thus, it has been held in this country that a note given by a father to a person who had given needful medicines, food, and shelter to his sick son, who was of full age, was void in law, because there was no legal consideration. And the same doctrine was applied where a son made a similar promise for food and support to his aged father. If, in either case, the promise had been made before the food or other articles were supplied, or even a request made before the supply, then the supply of the food and support would have been a good consideration. But they had all been supplied before any request or promise, and nothing was left but the moral obligation of a father to compensate one who had supported his son, or of a son to support his father; and this the law does not deem sufficient to make even an express promise enforceable at law.

SECTION III.

AN ILLEGAL CONSIDERATION.

If the whole of a consideration, or if any part of the consideration of an entire and indivisible promise, be illegal, the promise founded upon it is void. Thus, where a note was given in part for the compounding of penalties and suppressing of criminal prosecutions, it was held to be wholly void and uncollectible. And where a part of the consideration of a note was spirituous liquors sold by the payee in violation of a statute, such note was held to be wholly void. But if the consideration consists of separable parts, and the promise consists of corresponding separable parts, which can be apportioned and applied, part to part, then each illegality will affect only the promise resting on it; for in fact there are many considerations and many promises.

If the consideration be entire and wholly legal, and the promise consists of separable parts, one legal and the other illegal, the promisee can enforce that part which is legal.

SECTION IV.

AN IMPOSSIBLE CONSIDERATION.

No contract or promise can be enforced by him who knew that the performance of it was wholly impossible; and therefore a promise to do a thing which is obviously and certainly impossible is not a sufficient consideration in law to sustain a promise by the other party. But if one makes a promise, he cannot always defend himself when sued for non-performance by showing that performance was impossible; for it may be his own fault, or his personal misfortune, that he cannot perform it. He had no right to make such a promise, and must answer in damages; or if he had a right to make it in the expectation of performance, and this has become impossible subsequently, as by loss of property, for example, this is his misfortune, and no answer to a suit on the promise. There are, however, obviously promises or contracts, which, from their very nature, must be construed as if the promisor had said, "I will do so and so, if I can." For example, if A promises to work for B one year, at $20 a month, and at the end of six months is wholly disabled by sickness, he is not liable to an action by B for breach of his contract; and he can recover his pay for the time that he has spent in B's service. A mere want of money, which makes a pecuniary impossibility, is not regarded by the law as a legal impossibility.